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The United Nations Security Council has increasingly resorted to sanctions as part of its efforts to prevent and resolve conflict. United Nations Sanctions and the Rule of Law traces the evolution of the Security Council's sanctions powers and charts the contours of the UN sanctions system. It also evaluates the extent to which the Security Council's increasing commitment to strengthening the rule of law extends to its sanctions practice. It identifies shortcomings in respect of key rule of law principles and advances pragmatic policy-reform proposals designed to ensure that UN sanctions promote, strengthen and reinforce the rule of law. In its appendices United Nations Sanctions and the Rule of Law contains summaries of all twenty-five UN sanctions regimes established to date by the Security Council. It forms an invaluable source of reference for diplomats, policymakers, scholars and advocates.

About the Author:
Jeremy Matam Farrall is a Research Fellow at the Centre for International Governance and Justice, in the Regulatory Institutions Network at the Australian National University

Editorial Reviews

From the Publisher

"In the best tradition of Australian observers of the United Nations,...Dr Farrall has tempered his occasional reservations about the United Nations with a proper mixture of controlled idealism concerning what could be achieved and practical hints at how to go about improvement....We have Dr Farrall to thank for making available to all observers at once the detailed background of sanctions and a vision of the broad horizon showing what is what and what might be." —Michael Kirby, Australian Law Journal

"Farrall is to be congratulated for taking the high road toward a sanctioning system based on the rule of law, as well as for supplying anyone who is interested in the UN sanctioning system with a valuable resource for research into the content and administration of every Secuirty Council sanctioning regime through the year 2006."—Frederic L. Kirgis, Of the Board of Editors: American Journal of International Law

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Cambridge University Press
9780521878029 - United Nations Sanctions and the Rule of Law - by Jeremy Matam Farrall
Excerpt

PART I · SETTING THE SCENE

[W]e are ushering in an epoch of law among peoples and of justice among nations. The UN Security Council’s task is a heavy one, but it will be sustained by our hope, which is shared by the people, and by our remembrance of the sufferings of all those who fought and died that the rule of law might prevail.

French Ambassador Vincent Auriol, at the inaugural meeting of the UN Security Council17 January 1946

We meet at the hinge of history. We can use the end of the Cold War to get beyond the whole pattern of settling conflicts by force, or we can slip back into ever more savage regional conflicts in which might alone makes right. We can take the high road towards peace and the rule of law, or we can take Saddam Hussein’s path of brutal aggression and the law of the jungle.

US Secretary of State James Baker, when the Council authorised the use of force against Iraq29 November 1990

This Council has a very heavy responsibility to promote justice and the rule of law in its efforts to maintain international peace and security.

UN Secretary-General Kofi Annan, at the Council’s meeting on justice and the rule of law24 September2003

1 Introducing UN sanctions

Looking back from an early twenty-first century vantage-point, it is easy to forget that there was once a time when the United Nations Security Council could not easily employ its sanctions tool. From 1946 until the middle of 1990, Cold War politics prevented the Council from imposing the coercive sanctions provided for in Article 41 of the United Nations Charter more than twice. In 1966 the Council imposed sanctions against Southern Rhodesia and in 1977 it applied them against South Africa.1 By contrast, the post-Cold War period has witnessed a dramatic increase in UN sanctions. Since August 1990 the Security Council has initiated no fewer than twenty-three additional UN sanctions regimes.2 UN sanctions now form a prominent feature of the international relations landscape.

While the end of Cold War tensions created the preconditions for a sanctions renaissance, two other factors have contributed to the rise of sanctions. First, sanctions can often represent the least unpalatable of the coercive alternatives available to the UN Security Council when faced with the task of taking action to maintain or restore international peace and security. From a political perspective, it can be extremely difficult to garner the support necessary to authorise collective military action under Article 42 of the UN Charter, as the governments which would be expected to shoulder the burden of collective forceful action are reluctant to assume responsibility for the serious financial, political and humanitarian consequences that are likely to flow from the use of military sanctions. The imposition of non-military sanctions, by contrast, is generally thought to entail fewer costs than the use of force. By authorising sanctions, the Security Council can be seen to be taking strong symbolic action against threats to international peace and security, without having to assume the responsibility for, or incur the costs of, using force. Second, there is the perception that the potential of sanctions to achieve their policy objectives has increased with advances in international technology, communications and trade. Globalisation has fostered a climate of growing interdependence, in which states are increasingly reliant upon trade and communication links with the international community. In such an interdependent economic environment, a stringent UN sanctions regime has the power to devastate a target economy and to rein in target political elites.

The Security Council has employed a broad variety of sanctions, ranging from comprehensive measures which prevent the flow to and from a target of virtually all products and commodities,3 to simple measures that target specific items, such as arms,4 timber5 or diamonds,6 or particular activities, such as diplomatic relations7 or travel.8 UN sanctions have been applied around the globe, from Southern Rhodesia to Yugoslavia and from Haiti to North Korea.9 They have targeted nations, rebel groups and terrorist organisations.10 The Council has imposed sanctions for a range of objectives, including compelling an occupying state to withdraw its troops,11 preventing a state from developing or acquiring weapons of mass destruction,12 countering international terrorism,13 stemming human rights violations14 and promoting the implementation of a peace process.15

The collection of sanctions regimes stacking up in the Security Council’s trophy-cabinet is impressive. Yet UN sanctions attract many critics. Some denounce sanctions as ineffective.16 Others warn that sanctions can be counterproductive, galvanising opposition to UN intervention and strengthening the target government’s position of power.17 At the other end of the spectrum, sanctions are criticised for being too effective due to the devastating impact they can have on innocent civilian populations. Sanctions have been described as ‘the UN’s weapon of mass destruction’,18 as ‘a genocidal tool’19 and as ‘modern siege warfare’.20

This book adds another voice to the critical chorus. But the criticism ventured here is designed to be constructive. No matter how ineffective, counterproductive or indiscriminate they might appear, the Security Council is not about to remove sanctions from its peace and security toolkit. As Secretary-General Kofi Annan observed in his 2005 report In Larger Freedom, sanctions constitute ‘a necessary middle ground between war and words’.21 Enthusiasm for sanctions may wax and wane, but the Council will continue to resort to its sanctions tool when diplomacy is failing and other policy options are unpalatable or impractical. The key is thus to reform the Council’s sanctions practice so that sanctions are less ineffective, less counterproductive and less indiscriminate.

1. Defining UN sanctions

The term ‘sanctions’ can have many meanings. In the national sphere, sanctions generally represent a range of action that can be taken against a person who has transgressed a legal norm.22 Thus, a person who has committed the crime of manslaughter might receive the sanction of a term in prison. The nature, scope and length of potential national sanctions are generally determined by legislatures. The sanctions are then applied to concrete cases by judiciaries or juries, and they are then enforced by police forces and penal systems. National sanctions may serve a number of purposes, including defining the limits of permissible behaviour, punishing wrongdoers and deterring potential future wrongdoers.23 But whatever specific purpose a particular sanction may serve, the essence of national sanctions lies in their nexus with legal norms. This nexus separates sanctions from simple acts of coercion. In the national context, sanctions are imposed in order to enforce the law and they therefore aim to reinforce the rule of law.

In the international sphere, however, the term ‘sanctions’ is commonly used to describe actions that often bear only a slight resemblance to their domestic relative. Media commentators, diplomats and scholars employ the term to refer to a wide array of actions, taken for a variety of purposes, by a range of actors against a variety of targets.24 The spectrum of action commonly described as ‘sanctions’ includes military and non-military action. The term ‘sanctions’ can be used to describe action which aims to place physical restrictions upon the ability of a target to engage in the use of force itself, or to depict action which seeks to restrict the target’s freedom in other respects, such as in relations of an economic, financial, diplomatic or representative, sporting or cultural nature.

The fundamental difference between the meaning of sanctions in the national context and the popular understanding of sanctions in the international context is that the action commonly referred to as sanctions in the international sphere does not necessarily serve the purpose of enforcing a legal norm.25 The term ‘sanctions’ is widely used to refer to action which seeks either to coerce the target into behaving in a particular manner, or to punish it for behaviour considered unacceptable by the sender. The motive for imposing sanctions may be to respond to a breach of a norm or to prevent such a breach, but it may also be to pursue a foreign policy agenda or to gain some advantage over the target.26 Some commentators have even employed the term ‘positive sanctions’ to refer to acts of a non-coercive nature which seek to induce a particular type of behaviour.27

The range of actors who impose sanctions on an international basis includes individual states, groups of states, the international community as a whole, and non-state actors. When one state initiates coercive action, its actions are commonly referred to as ‘unilateral sanctions’. A prominent example of unilateral sanctions is the regime which has been maintained against Cuba by the United States since the Cuban missile crisis.28 When action is initiated by a group of states, the action becomes ‘multilateral’ or ‘regional’ sanctions. Examples of multilateral/regional sanctions regimes include those imposed against Haiti by the Organization of American States29 and against the former Yugoslavia by the European Union.30 When action is taken by a majority of states, it is referred to as ‘collective’ or ‘universal’ sanctions. These terms have generally been reserved to describe sanctions applied by the League of Nations or the United Nations.31 Finally, even non-forceful coercive activities initiated by non-state actors, such as citizen-initiated boycotts, are sometimes described as sanctions.32 The range of actors who could potentially be the target of sanctions generally mirrors the actors who can impose sanctions. In practice, forms of sanctions have been imposed against one state, a group of states, and extra-state entities.

In this study, the focus is upon the ‘collective’ or ‘universal’ sanctions applied by the United Nations. The term ‘UN sanctions’ denotes binding, mandatory measures short of the use of force that are applied against particular state or non-state actors by the UN Security Council, as envisaged by Chapter VII and Article 41 of the UN Charter.33 As provided in Article 41, ‘UN sanctions’ thus fall within the following description:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.34

Since the birth of the United Nations, the Security Council has acted upon its Article 41 sanctions powers to create twenty-five UN sanctions regimes.35 In addition to its actions establishing and modifying those twenty-five sanctions regimes, the Security Council has at times requested states to impose measures that might be described as ‘voluntary sanctions’. In the cases of Southern Rhodesia and South Africa, prior to the eventual imposition of mandatory sanctions the Council requested states to take certain action against Southern Rhodesia and South Africa, without requiring the application of such measures under Chapter VII.36 Similarly, in the case of Cambodia, the Council requested states bordering Cambodia to prevent the import of timber products from Khmer-Rouge controlled areas.37 These instances are not covered as part of the current analysis, as the measures requested were neither imposed under Chapter VII nor framed in mandatory language.

The Security Council has also taken some other initiatives that might be interpreted to fall within the scope of Article 41, due to the fact that they involved action short of the use of military force taken under Chapter VII and after the Council had determined the existence of a threat to the peace. These initiatives include the creation of two international criminal tribunals,38 which have in fact each determined that their establishment falls within the scope of Article 41.39 The Council has also applied wide-ranging measures short of the use of force in an effort to prevent and suppress terrorism40 and to prevent non-state actors from acquiring weapons of mass destruction and their means of delivery.41 These instances are not treated as examples of UN sanctions regimes for the purposes of this study, however, as they do not possess the key characteristics of UN sanctions regimes, which are applied traditionally against states or particular, readily identifiable groups of non-state actors.

2. Central contention and key objectives

The central contention of this book is that sanctions have been applied in such a way that they have undermined the rule of law, thus weakening the authority and credibility of the UN Security Council and its sanctions tool. As a consequence, states are less likely to have full confidence in the UN sanctions system and are thus less likely to comply fully with their obligation under Article 25 of the UN Charter to implement sanctions. The end result is that sanctions are less effective than they could be. Until the UN Security Council’s sanctions practice can be reformed so that there is widespread confidence in its integrity, sanctions are unlikely to serve as an effective tool for resolving international conflict. Without such reform, the UN sanctions system will remain a destabilising influence upon, rather than a symbol of, the rule of law in international society.

The challenge is therefore to reform the UN Security Council’s sanctions practice so that the Council and the UN sanctions system command such respect and inspire such confidence that states both desire and feel compelled to comply with sanctions regimes and thus implement sanctions effectively. This book proposes a pragmatic model of the rule of law that is designed to be used in the context of Security Council decision-making on sanctions. If followed, this model would help to reassure the broader community of states that the Security Council is genuinely committed to the rule of law. By ensuring that

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